This advisory explains two amendments to the Massachusetts special education law, General Laws chapter 71B, that were passed by the Legislature and signed into law by the Governor in July 2002. These amendments were enacted through outside sections of the FY 2003 state budget (St. 2002, c. 184) and they are in effect now. Please share this information with relevant staff members and see to it that procedures in your district, school or program are revised as necessary to comply with the new provisions of state law.
G.L. chapter 71B, section 2 has been amended by section 81 of St. 2002, c. 184 as follows:
The third paragraph of section 2 of chapter 71B of the General Laws, as appearing in the 2000 Official Edition, is hereby amended by adding the following sentences:- Children in public schools shall be entitled to teaching at home and in the hospital if the child's physician determines the child will have to remain at home or in a hospital for more than 14 school days in any school year. Children in non-public schools shall be entitled to home and hospital services when deemed eligible under this chapter. An expedited evaluation, which shall be limited to a child's physician statement unless there is a clear indication of the need or unless the parents request additional evaluations, shall be conducted and services provided to eligible students by the school district within 15 calendar days of the school district's receipt of the child's physician statement. [Emphasis added.]
The first two sentences do not change existing state law and practice, represented in the special education regulations, 603 CMR 28.00. The final sentence of this section, however, which is highlighted for your convenience, is a new provision. To assist school officials in carrying out this new law, we provide the following guidance:
As previously, students who have been found eligible for special education, whether they are currently enrolled in public or non-public schools, are entitled to receive publicly-funded educational tutorial services that address the student's general and special education needs when they are out of school for medical reasons. For detailed information, please refer to the Department of Elementary and Secondary Education's Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital that was revised and reissued in January 2002. The Guide is based on the regulatory provisions at 603 CMR 28.03(3)(c) and 28.04(4). This Guide can be viewed on the Department's website at Question and Answer Guide on the Implementation of Educational Services in the Home or Hospital webpage.
New practice in this area will pertain to students who have not yet been evaluated for special education eligibility and who are not enrolled in the public schools but rather are enrolled in a non-public school at private expense (hereafter: private school students).
As previously, a parent who wishes to obtain publicly-funded special education services for a private school student who has not yet been found eligible for special education must request that the public school district in the community where the student resides conduct an evaluation to determine special education eligibility.
As previously, the public school district is required by law to do a complete evaluation. The school district has 45 school working days from the date of the parent's consent to conduct an evaluation including all required assessments and to convene a Team and determine if the student is eligible for special education. (603 CMR 28.05(1))
New language now requires that if a parent of a private school student requests an evaluation to determine eligibility for special education and presents a physician's statement, then an immediate review of the physician's statement is required. This review may lead to an expedited determination regarding special education eligibility in certain circumstances.
(a) If the statement provides sufficient detail to affirm that the student has a chronic or serious health condition, and the parent does not request additional evaluations, then the school district must determine if there is sufficient information available to consider if the student has a "health impairment" according to the definition provided under 603 CMR 28.02(7)(i) and cited in (c) below. If the district believes there is sufficient assessment information to make such a determination then it must convene a Team within 15 days of the receipt of the physician's statement and the request from the parent.
Use of this provision for an expedited consideration of eligibility is limited to consideration of eligibility because of a health impairment that adversely affects educational performance.
The district may determine that the physician's statement contains insufficient detail related to the student's health and its effect on the student's educational performance. In such case, the existing timelines set forth in 603 CMR 28.05(1) (and, in this advisory, #4 above) shall prevail.
(b) If the district convenes an expedited Team meeting, the school district must invite a representative of the student's private school to participate as a Team member and to bring information about the student's educational status to the Team meeting.
(c) The Team then has the responsibility to consider if the student has a disability consistent with the following definition:
Health Impairment — A chronic or acute health problem such that the physiological capacity to function is significantly limited or impaired and results in one or more of the following: limited strength, vitality or alertness including a heightened alertness to environmental stimuli resulting in limited alertness with respect to the educational environment. The term shall include health impairments due to asthma, attention deficit disorder or attention deficit with hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, and sickle cell anemia, if such health impairment adversely affects a student's educational performance. (603 CMR 28.02(7)(i))
(d) The Team may make a determination of the student's eligibility or ineligibility for special education based on the information available. If the private school student is determined to be eligible for special education because of a "health impairment," the Team shall develop an IEP at the meeting and upon parental consent, the district shall provide appropriate services. See # 1 above for more information.
(e) The Team may make a determination that additional evaluation is necessary to make a determination of eligibility. In such case, the school district must complete the additional assessments and schedule a Team meeting within 30 school working days of receipt of consent from the parent for the additional assessments. The Team convening at this time must determine whether the student is or is not eligible for special education. Such determination is not limited to a disability consisting of a health impairment. This timeline then conforms to the standard evaluation requirements set forth in 603 CMR 28.05(1).
G.L. chapter 71B, section 3 has been amended by section 83 of St. 2002, c. 184 as follows:
Section 3 of chapter 71B of the general laws, as appearing in the 2000 Official Edition is hereby amended by inserting after paragraph 18 the following new paragraph: If a student's individual education plan necessitates special education services in a day or residential facility or an educational collaborative, the IEP team shall consider whether the child requires special education services and supports to promote the student's transition to placement in a less restrictive program. If the student requires such services, then the IEP shall include a statement of any special education services and supports necessary to promote the child's transition to placement in a less restrictive program.
This provision is consistent with existing federal law that requires the IEP Team to consider how to support the student's ability to receive special educational services in the least restrictive environment (LRE). The federal law, in defining LRE, requires that "to the maximum extent appropriate, children with disabilities…are educated with children who are nondisabled; and that special classes, separate schooling or other removal of children with disabilities from the regular educational environment occurs only if the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily." (34 CFR 300.550(b)(1-2))
This LRE provision, read in concert with the federal provisions on the IEP, is intended to result in a complete and careful consideration of the necessary supports for a student to be successful in a less restrictive program. The federal required content for the IEP includes: "A statement of the special education and related services and supplementary aids and services to be provided to the child, or on behalf of the child, and a statement of the program modifications or supports for school personnel that will be provided for the child…to be educated and participate with other children with disabilities and nondisabled children…" (34 CFR 300.347(a)(3))
The new provision of the Massachusetts special education law furthers LRE by requiring the Team to consider, for any student placed in a day or residential special education facility or in an educational collaborative, what is necessary to "promote…transition" to a less restrictive program. The Department, therefore, provides the following guidance:
When developing an IEP that will result in the student's initial placement out-of-district, or convening for an annual review of the program of any student who has been placed out-of-district, the Team must actively consider if any special education services or supports for the student or school personnel are necessary to help the student transition to a less restrictive program. If the Team concludes that certain services are necessary to promote the student's transition, the Team shall include a goal statement on IEP-4 related to preparation for transition to a less restrictive program and identify all necessary services on IEP-5 on the service delivery grid of the IEP.
This is a change in the elements that are to be discussed by the Team during the development of the IEP. Therefore, all IEP Team chairpersons should be made aware of this new requirement. No changes to the IEP form itself are necessary, as the outcomes of such a discussion can be documented appropriately on the existing IEP form.
In closing, we hope this guidance is helpful in understanding the impact of these new statutory requirements and in ensuring that local practices are consistent with the law. If you have any questions or require additional information, please contact Program Quality Assurance Services at the Department of Elementary and Secondary Education (781-338-3700).
Thank you for your attention to this memorandum and for assuring that students with disabilities receive appropriate services.
Last Updated: October 4, 2002
Massachusetts Department of Elementary and Secondary Education
75 Pleasant Street, Malden, MA 02148-4906
Voice: (781) 338-3000
TTY: (800) 439-2370
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